Opinion
B192852
5-14-2007
ZINA BRAWER, Petitioner and Appellant, v. HARRY L. BRAWER, Respondent.
Law Offices of Lee W. Salisbury, APC, and Lee W. Salisbury for Petitioner and Appellant. Carl Etting for Respondent.
NOT TO BE PUBLISHED
This is an appeal from an order denying appellant Zina Brawers motion for attorney fees incurred in a quiet title action. She sought the fees under Family Code section 2030, contending that the quiet title action was related to a family law action. We affirm, as we explain:
We begin with the procedural facts, which are a little more complicated than one would anticipate. Zinas first family law petition was for nullity of marriage. It was filed in March of 1981 and dismissed on May 15 of that year. The respondent was Harry Brawer, respondent here. The petition listed a marriage date of May 16, 1979 and a separation date of February 25, 1981.
In November 1983, Zina filed a second family law petition, this one for dissolution of marriage or in the alternative nullity of marriage to Harry, based on bigamy. The petition again lists May 16, 1979 as the date of marriage, but lists May 12, 1981 as the date of separation. The petition was uncontested as to nullity and nullity was granted, but no judgment was entered.
In May 2004 Zina filed the quiet title action against Harry and his wife Evelyn Brawer. Zina sought to quiet title to specified real property on Crestwood Way in Los Angeles County. She alleged that she had lived at the property since 1996 and that in January of 2003, Harry had executed and delivered to her a grant deed conveying his undivided 50 percent interest (with Evelyn) to her. The action apparently followed Harry and Evelyns attempt to evict Zina, through an unlawful detainer action.
In June 2004, Zina filed another petition for dissolution, listing a different marriage date, January 28, 1979, and a separation date of April 1994. The petition recites that "[t]here are separate assets and obligations, the complete nature and extent of which are presently unknown to the petitioner," and that "[t]he nature and extent of the community property and obligations of the parties will be determined and furnished to this court at the time of trial. " The 2004 family law action and the quiet title action were consolidated.
In October 2004, Zinas 1983 family law petition (the second petition) was dismissed, on her motion, for failure to bring the matter to trial within five years. Harry sought to have judgment entered instead, but the request was denied.
In May 2005, in the 2004 family law action, Harry moved for fees and costs as sanctions, contending that the action was being prosecuted for improper reasons. He contended that when Zina filed the action, she knew that he and Evelyn were attempting to sell the Crestwood Way property, and that she filed the action so that she could obtain standard family law restraining orders preventing that sale.
Judgment was entered in the family law action in July 2005. The court found, inter alia, that the parties marriages of January 28, 1979 and May 16, 1979 were void marriages under Family Code section 2201, that Zina was a putative spouse as to the January 28, 1979 marriage, that the date of separation was February 25, 1981, and that the division of the quasi-marital property and debts was settled by the parties before Zinas 2004 petition was filed. The issue of fees was reserved.
Judgment was entered in the quiet title action in February 2006. The court found that on the date the action was filed, Zina was the owner of an undivided half interest in the Crestwood Way property as tenant in common with Evelyn, that the property had been sold on March 30, 2005, and that the proceeds of the sale were being held in trust by Harry and Evelyns attorney. The court ordered fifty percent of the money in trust distributed to Zina.
Zina moved for attorney fees in the quiet title action and "related family law litigation." Her counsel declared that he had represented Zina in the quiet title action, the 2004 dissolution, the dismissal of the 1983 dissolution, and an unlawful detainer filed against her by Harry and Evelyn, and that all four actions arose from the putative marriage relationship and continuing relationship between Zina and Harry.
In response, Harry filed a brief supporting his earlier request for fees and opposing Zinas request.
In May 2006, the court denied both requests for fees. As to Zinas request, the court recited the history of her earlier petitions, then found that the quiet title action "arose out of a conveyance made by [Harry] to [Zina] in 2003, over 20 years after the parties separated. The transaction at issue is and was unrelated to the parties marital relationship."
Under Family Code section 2030, subdivision (a), a court may order fees "reasonably necessary for the prosecution or defense of the [family law] proceeding or any proceeding related thereto . . . ." As In re Marriage of Seaman & Menjou (1991) 1 Cal.App.4th 1489, observed, "related" has broad and generally unhelpful dictionary definitions involving logical or causal connections. (Id. at p. 1496.) "The generality of the statutory language . . . leaves a wide area for exercise of the trial courts discretion in determining whether an action is related to a FLA proceeding." (Ibid.) We see no abuse of discretion here. Legally, Zina cites Seaman & Menjous suggestion that the requisite connection between the actions "might be found by considering a variety of factors including the type and function of the proceeding, parties to the proceeding, factual and legal matters at issue and motives for the litigation." (Seaman, supra, 9 Cal.App.4th at p. 1496.) Factually, Zina cites the fact that the cases were consolidated, and contends that they were of the same "type or proceeding," that is, that both actions were actions to determine ownership interests in property. She argues that both actions were filed for the same reason, to divide property, and that the actions were functionally identical factual and legal matters.
The difficulty with the argument is that the court found that Zina and Harry had settled issues concerning quasi-marital property before Zinas 2004 petition was filed, and that the quiet title action arose out of a 2003 conveyance and was not related to family law issues. Zina has made no showing that those findings were not supported by substantial evidence, and we thus presume that they are. Given the factual findings, the quiet title action and the family law action did not have the same function, or identical legal or factual issues and there is no abuse of discretion in the ruling on fees.
As Zina argues, the function of the "related proceeding" language is to allow a trial court to ensure both parties ability to maintain or defend a family law action. "[T]he statute enables a trial court to prevent a spouse with greater financial resources from harassing or coercing the less advantaged spouse into submission in the [family law] case by forcing him or her to defend other lawsuits; such independent suits are related . . . because they are intended to produce some result in the [family law] case." (In re Marriage of Seaman & Menjou, supra, 1 Cal.App.4th at p. 1497; In re Marriage of Green (1992) 6 Cal.App.4th 584, 590-591.)
However, we see nothing in that proposition which would indicate that the trial court abused its discretion here. Nothing in the record indicates that Harry, who the trial court found to have greater financial resources, used the quiet title action to harass Zina or to produce a result in the family law action, or that Zina was deterred in pursuing her rights under the family law.
Zina also argues that title to the Crestwood Way property could have been litigated in the family law proceedings, citing Family Code section 2650, which provides that at the request of a party, a court hearing a proceeding for division of the community estate has jurisdiction to divide the separate property interests of the parties in real and personal property, held by the parties as joint tenants or tenants in common. That may be so, although nothing in record indicates that Zina made that request. What is more, given that there was no award of fees in the family law action, the statute is not determinative.
Finally, in her reply brief, Zina suggests that given that the facts are undisputed, the issue before us is a mixed question of fact and law. We cannot agree. The trial court was directed by the statute to exercise its discretion concerning the award of fees, "guided by the well-established mandate to ascertain the intent of the Legislature so as to effectuate the purpose of the law [citations] . . . ." (In re Marriage of Green, supra, 6 Cal.App.4th 584, 590.) The trial court did so, and its ruling will not be overturned absent an abuse of that discretion.
Disposition
The judgment is affirmed. Respondent to recover costs on appeal.
We concur:
TURNER, P. J.
MOSK, J. --------------- Notes: We use first names for purposes of clarity, not out of disrespect.